Bromberg Howard - Marijuana Law in a Nutshell

WEST ACADEMIC PUBLISHINGS LAW SCHOOL ADVISORY BOARD

JESSE H. CHOPER

Professor of Law and Dean Emeritus,
University of California, Berkeley

JOSHUA DRESSLER

Distinguished University Professor, Frank R. Strong Chair in Law
Michael E. Moritz College of Law, The Ohio State University

YALE KAMISAR

Professor of Law Emeritus, University of San Diego
Professor of Law Emeritus, University of Michigan

MARY KAY KANE

Professor of Law, Chancellor and Dean Emeritus,
University of California, Hastings College of the Law

LARRY D. KRAMER

President, William and Flora Hewlett Foundation

JONATHAN R. MACEY

Professor of Law, Yale Law School

ARTHUR R. MILLER

University Professor, New York University
Formerly Bruce Bromley Professor of Law, Harvard University

GRANT S. NELSON

Professor of Law, Pepperdine University
Professor of Law Emeritus, University of California, Los Angeles

A. BENJAMIN SPENCER

Earle K. Shawe Professor of Law,
University of Virginia School of Law

JAMES J. WHITE

Robert A. Sullivan Professor of Law Emeritus,
University of Michigan

MARIJUANA LAW

IN A NUTSHELL

MARK K. OSBECK

Clinical Professor of Law
The University of Michigan Law School

HOWARD BROMBERG

Clinical Professor of Law
The University of Michigan Law School

The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.

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ISBN: 978-1-63459-935-1

To Andy and Franklin, for their support.

Howard

To my father, Ken, for leading the way.

Mark

PREFACE

On November 8, 2016, two major issues were on American ballots coast-to-coast: the presidential election and the status of marijuana. Marijuana referenda were on the ballots of nine states; four states voted to enact medical marijuana measures, and four states recreational marijuana. As a result, more than half of the states in the United States and the District of Columbia now have legal medical marijuana. Eight states, plus the District of Columbia, comprising almost a quarter of the U.S. population, now have recreational marijuana. These states are pioneers in fashioning laws to regulate, monitor, and tax marijuana consumption. They do so against a framework of federal laws that classify marijuana activity as illegal and subject to severe sanctions. Congress, the executive branch, and federal and state courts wrestle with the complexities of this evolving area of law while legal scholars and students wrestle with the almost unprecedented questions they raise.

Across the 50 states the status of marijuana varies from strictly prohibited, to authorized for medical purposes, to fully legal, subject only to the kinds of restrictions imposed on substances like tobacco and alcohol. With such disparate classification, marijuana has unique and fascinating legal characteristics.

This Nutshell covers the wide range of laws affecting marijuana. There is no neat pre-packaging of marijuana issues. We organize our topics according to the basic divisions of marijuana law. This involves primarily accounting for the differences between federal and state law, and for the diversity among the 50 states themselves. The federal law of marijuana is largely shaped by its inclusion in the most restrictive schedule (Schedule I) of the 1970 Controlled Substances Act (abbreviated throughout the book as the CSA). For the states, we focus on issues raised by its legalization for medical and recreational purposes, noting peculiarities of one or other state where necessary.

U.S. marijuana law is also shaped at a global and local level. The United States is signatory to international treaties that curtail marijuana use. The United Nations estimates 183 million persons use marijuana worldwide; thus we review the experience of foreign nations as well. And municipalities are shaping their own marijuana law, raising questions as to how far local ordinances can conflict with state law. The law of marijuana as it relates to Native Americans is of importance both for the sovereign status of Indian tribes and because of initial forays into cultivation of marijuana and hemp on Indian reservations.

In addition to jurisdictional questions that divide marijuana law, it is also bifurcated by its illegal or legal status. Where illegal, marijuana law is primarily a subset of criminal law and procedure, and we focus on the criminal law of marijuana in two ways. First, by the range of its prohibitions and penalties. And second, on how the unique characteristics of marijuana law shape our criminal jurisprudence in such areas as Fourth Amendment search and seizure. Where legalized, marijuana law is a subset of the law of regulated substances, but with special characteristics. For example, marijuana businesses must account for federal regulations affecting their dealings with banks, bankruptcy courts, the IRS, and employees. States must calibrate new rules to cover issues such as excise and sales taxes on marijuana, parental custody for medical marijuana users, and driving while marijuana-impaired. Lawyers must take into account canons of professional responsibility against advising illegal businesses.

Given this wide range of issues, marijuana law is an ideal topic for understanding the unique characteristics of American law and legal institutions. All branches of government make their impact known in marijuana law, often at odds with each other. We include for further investigation citations to the important marijuana-related constitutional provisions, court cases, statutes, amendments, and regulations promulgated by federal and state agencies.

In writing this Nutshell, we have felt a certain kinship with the legendary painters of the Golden Gate Bridge, who no sooner having reached the end of the bridge, must return to the beginning to start a new coat of paint. As we finished our final chapters, we had to update our first chapters as to this rapidly evolving area of law. Nevertheless we endeavored to make this Nutshell current as of January 2017.

Given the wide range of subjects inherent in marijuana law, we were fortunate to be able to consult with several Michigan Law School professors who provided helpful feedback, including: Professors Jerold Israel as to criminal law and procedure, Douglas Kahn as to federal taxation, Ted Becker as to public policy, Frank Vandervort as to child custody issues, and Matthew Fletcher as to tribal law; and also University of California, Hastings College of Law Professor Jo Carrillo. In addition, we would like to acknowledge the assistance of our former students and now colleagues in the legal professionReid Murdoch and Elizabeth Bundy. As chair of the Michigan Law chapter of Students for Sensible Drug Policy, Reid supplied helpful background information and materials. And Reid and Liz both provided superb research assistance and gave valuable feedback as to every chapter. A final note of thanks is owed to Helen Ryan and Kathi Ganz for their unstinting help in organizing the manuscript.